Healthcare - market insights Q3/Q4 2024

Personal injury discount rate (PIDR) in England and Wales 

The review of the PIDR in England and Wales by the new Lord Chancellor commenced on 15 July 2024.   

In accordance with the Damages Act 1996 (as amended by the Civil Liability Act 2018) the Lord Chancellor is required to carry out the review and determine whether the PIDR will be changed or remain as it is within 180 days of the review starting. An announcement will therefore follow before or on 11 January 2025. 

New +0.5% personal injury discount rates announced in Northern Ireland and Scotland

On 26 September 2024 the Government Actuary’s reports covering Scotland and Northern Ireland confirmed that the personal injury discount rate (PIDR) of +0.5% will apply to both jurisdictions. The rates came into effect on 27 September 2024. This is welcome news for insurers and compensators.

The previous rate for Northern Ireland of -1.5% was set in March 2022 in accordance with the provisions of the Damages (Return on Investment) Act (Northern Ireland) 2022 which was disappointing for insurers and other compensators who hoped for an increase of more than 0.25% on the interim rate of -1.75%. The previous rate in Scotland was set in September 2019 at -0.75%.  

Personal injury discount rates in Ireland to remain at 1% and 1.5%  

The Minister for Justice has accepted the recommendations of an expert group that there should be no change to the personal injury discount rate in catastrophic injuries cases in Ireland. The discount rate will continue at 1% for future care costs and 1.5% for future financial loss.  

The Minister has indicated that work is underway on drafting regulations to officially set the discount rate at these levels.  The Minister’s announcement, and the anticipated introduction of the relevant regulations, brings long-awaited and welcome certainty to plaintiffs and defendants involved in catastrophic injury litigation. 

We have also identified PIDR as a key update in the Catastrophic injury section.

Martha’s Rule  

On 27 May 2024, NHS England announced that 143 hospitals will be part of the first phase of implementation of Martha’s Rule (an automatic right to obtain a second opinion when hospital care is of concern and a patient’s condition is deteriorating). The patient safety initiative is to be in place in these locations by March 2025. In collaboration with Martha’s parents, NHS England is developing materials that will explain and raise awareness of the initiative in hospitals.  

The introduction of Martha’s Rule follows another recent significant patient safety development in the NHS, with the Patient Safety Incident Response Framework (PSIRF) having replaced the Serious Incident Framework. 

Patient Safety Commissioner consults on draft ‘Principles of Better Patient Safety’ to help guide and deliver change

On 24 July 2024, the Patient Safety Commissioner (PSC) launched a public consultation on a set of draft ‘Principles of Better Patient Safety’ (the Principles), aimed at placing patient safety, and patients, “at the heart of everything”.

The Principles (once finalised), are intended to be a guide for those in leadership positions within healthcare to proactively apply to minimise risk and reduce avoidable harm.

Kennedys submitted a response to the consultation, which closed on 6 September 2024. Here we consider the consultation and three key themes, which stand out to us.

Independent review on equity in medical devices

On 11 March 2024, the Department for Health and Social Care published an independent report - 'Equity in Medical Devices: Independent Review’.

The Review was commissioned in response to evidence “about the potential for racial and ethnic bias in the design and use of some medical devices commonly used in the NHS, and that some ethnic groups may receive sub-optimal treatment as a result”.

The previous Government’s response to the recommendations, including commitments to address those, was published on the same day as the independent report. We anticipate updates on progress in respect of the recommendations will follow under the new Government.

Gender bias in PPE 

Calls for personal protective equipment (PPE) to be designed for female workers are long standing, and the Health and Safety Executive (HSE) as the workplace regulator has recently acknowledged ill-fitting PPE as an issue.   

To ensure compliance, duty holders may have to seek out a range of alternative suppliers or change their procurement practices to ensure a wider selection of suitably inclusive equipment. This means avoiding suppliers who do not provide a range of sizes and seeking to ensure their suppliers have properly assessed the appropriateness of their equipment for everyone.   

Manufacturers and suppliers must also play their part in providing a full range of PPE for men and women at a similar cost. 

We have also identified PPE as a key update in the Crime & regulatory and Employers’ liability section.

Justice Committee call for evidence on the Coroner Service   

Following the dissolution of Parliament prior to the General Election, the Justice Committee was required to cease work and was not able to proceed with producing planned reports relating to open enquiries.   

In a letter to the Minister for Courts and Legal Services on 30 May 2024, Sir Robert Neill (the outgoing Chair of the Justice Committee), set out the Committee’s findings on the Coroner Service as far as he was able.  Among the findings referred to, the Committee reiterated its earlier recommendation for a united single service for England and Wales.

Lower damages fixed recoverable costs (LDFRC) scheme: clinical negligence claims valued between £1,001 to £25,000 

The outcome of the supplementary consultation on disbursements in the LDFRC scheme was published on 8 May 2024. The Department of Health and Social Care confirmed the then government’s intention to proceed with its proposals, subject to modifications.

Implementation of the LDFRC scheme was initially planned for April 2024. Following the General Election, an update on this and whether there will be any change to proposals is awaited. 

Case law developments 

Irish High Court considers whether doctors owe a duty of care to their patients’ relatives

Germaine v Day [2024]

In a much-anticipated judgment, the Irish High Court has found that the wife of a man who died following a delayed diagnosis of cancer cannot recover damages for nervous shock.

From a legal perspective, the significance of this decision lies not in this finding, which is somewhat specific to the facts of this particular case, but in the Judge’s comments on the broader issue of whether, as a general principle, healthcare providers owe a duty of care to the relatives of their patients. This issue was recently debated by the UK Supreme Court in Paul v Royal Wolverhampton NHS Trust [2024].